GENDER EQUALITY IN THE EYES OF CONSTITUTION

      

This article was written by K. NANDIKA and M. VIVEKA, students of School of Excellence in Law, Chennai.

1. INTRODUCTION:

Though we consider ourselves as the anti-discrimination campaigner and champions of equal rights, “Gender Discrimination” exists even in this 21^st century. The elimination of gender discrimination is one of the fundamentals of the constitutional edifice of India. In fact the constitution empowers to adopt positive discrimination for neutralizing the cumulative discrimination and deprecation. The constitution of India is striving hard to ensure gender justice. This paper dealing with gender equality is an attempt made by us to unturn every stone towards gender equality.

2. THE PREAMBLE OF THE CONSTITUTION:

Preamble being the pivotal evidence stating the purpose of constitution,[3] it begins with “We the people of India” and further assures dignity of individuals irrespective of gender, caste, religion etc.

2.1. FUNDAMENTAL RIGHTS GUARANTEED CONSTITUTION:

PART III of the constitution, consisting of articles 12 to 35, relating to fundamental rights are considered as heart of the constitution. As per Justice P.N.Bhagwati- “Fundamental Rights represent the basic principles cherished by the people since Vedic times and are calculated to protect the dignity of the individual and create code in which every human being can profound his personality.”[4]

Article 14 guarantees to every person the right to equality before the law or the equal protection under law within the territory of India. Considering the disabilities prevailing in the society article 14 made it clear that “equals should be treated equally” and different treatment for differently placed is not only permitted but required. Article 14 seeks legal equality to all citizens. Article 14 permits reasonable classification but classification based on sex is not permissible.[5] Thus article 14 helps to strike down hostile discrimination against not only women who have been ignored by the society.

Article 15(1) states that the state shall not discriminate against any citizen on the grounds of religion, caste, sex, place of birth or any of them. A law which deprive female proprietress to hold and enjoy her property on the ground of her sex violates article 15.[6]

Article 16(1) (2) of the constitution embodies that all citizens will enjoy equality of opportunity in matters of public employment irrespective of their gender, races, castes, ethnicity, religion, and socio economic background. Article 14 guarantees the general right of equality. Article 15, 16 are the instances of the same right in favor of citizen in special circumstances.[7]. The Apex court held that women workers are in no way inferior to male counterparts, hence there should be no discrimination on the basis of sex.[8]  In this way, Indian judiciary has played a positive role in securing equality of opportunity in public employment irrespective of gender.

 Article 19(1)(g) guarantees all citizen  to carry on any occupation or trade or business. The right under article 19(1)(g) must be exercised consistently with human dignity. To realize the concept of gender equality, the supreme court has laid down certain guidelines to prevent sexual harassment at work place.[9]

 Article 21 states that no person shall be deprived of life and liberty except according to procedure established by law. Domestic violence against women and transgender is derogatory to article 21 because it weakens the respect and dignity. Right to life includes right to live with dignity.[10]J.Bhagwati held right to live is the fundamental right of everyone in this country to live with dignity, free from exploitation.[11]Article 21 has been invoked for the upliftment and ensures dignified life for prostitutes.[12]J.Subba Rao held that right to privacy is an essential ingredient of personal liberty. The Supreme Court held that even a woman of easy virtue is entitled to privacy and no one can invade her privacy as and when he likes.[13]Thus by article 21 the status of women and their condition would be uplifted.

3. SPECIAL PROVISION FOR WOMEN:

Considering Article 14, The apex court, while dealing with fixation of different ages of retirement for male and female employees and the provision preventing the female employees from having child, expressed the view to the effect of retirement of air hostesses in the event of marriage taking place within four years of service does not suffer from any irregularity but retirement of her first pregnancy violate article 14 and 16 of constitution.[14] The Supreme Court quashed the discriminative provision of Chotanagpur Tenancy Act, 1908 and paved the way for tribal women to entitle their rights to tenancy lands[15].

Article 15(3) states that the state shall make any special provision for women and children. The main object of article 15(3) is protective discrimination, considering the physical position of women. The Bombay high court held that state can establish educational institutions only for women.[16] Women are the weaker section for whose upliftment article 15(3) is construed subject to condition that reservation should not exceed 50%limit.[17]

Article 23 of the constitution provides right against exploitation. It prohibits traffic in humans and Devadashi system including traffic in women and children for immoral or other purposes.[18]Only on the strength of article 23, Immoral traffic act, 1956 was passed which aims at abolishing the practice of trafficking and prostitution.

3.1. DIRECTIVE PRINCIPLES OF STATE POLICY:

Directive principles are fundamental in the governance of the country only by which social, economic and political justice can be achieved. Part IV of constitution namely article 39(a),(d),(e),42,44 deals with development and welfare of women.

According to article 39(a) “the state shall direct its policy towards securing the citizens equally, ensuring right to an adequate means of livelihood.”[19]According to article 39(d) “the state shall direct its policy towards equal pay for equal work”.[20]In view of article 39(e)the state shall direct its policy towards ensuring the health and strength of workers (men and women) and of underage children are not forced by economic necessity to enter a vocation to their age and strength. Article 42 imposes an obligation upon the state to make provision for securing just and humane condition of work for maternity relief.

Article 44 of the constitution requires the state shall endeavor to secure for the citizens, a uniform civil code throughout the territory of India. India comprises of diverse religions, faiths, beliefs, and each of these religious denominations are governed by their personal laws which vary one from another. Due to these variation people tend to convert to other religion for their benefits .A Hindu husband married under Hindu law and again married the second time by converting to Islam. As the state had not made any efforts to legislate uniform civil code, the Supreme court directed the government to report the measures taken for the implementation of article 44 of the constitution in the interest of unity and integrity and for the welfare and benefit of women.[21]No gender equality can be achieved in its true sense unless uniform civil code is being implemented.

3.2 FUNDAMENTAL DUTIES:

Part IV A of the constitution incorporated through 42^nd amendment act 1976, the latter part of clause (e) of article 51A which relates to women mandating citizen “to renounce practice derogatory to the dignity of women”. These duties should be taken into consideration in deciding the case and should be observed by the state while enacting statutes.

3.3 THE CONSTITUTION 73^RD AND 74^TH AMENDMENTS ACT OF 1993:

The 73^rd and 74^th amendment has served as a major break towards enhancing the women’s participation in democratic process. These amendments provided for reservation of 33.3% of elected seats. There is also a one third reservation for women of post of chairpersons of these local bodies. This is likely to be widened by constitutional amendment for women’s representation in legislature by reservation.

4. POSITION OF TRANSGENDER:

  “Transgender person” means a person whose gender does not match with the gender assigned to that person at birth and includes trans-man or trans-woman(whether or not such person has undergone Sex  Reassignment Surgery or hormone therapy or laser therapy or such other therapy), person with intersex variations, gender-queer and person having such socio-cultural identities as kinner, hijra, arravani and jogta.[22] Person with intersex variations means a person who at birth shows variation in his or her primary sexual characteristics, external genitalia, chromosomes or hormone from normative standard of male or female body.[23] Transgender or trans is an umbrella term for people whose gender identity is different from the sex assigned to them by birth

4.1. HISTORICAL BACKGROUND OF TRANSGENDER:                                 

Unveiling the pages of Vedic era, the mythological proofs remain the predominant evidence denoting India being an egalitarian. The Vedic literature (period from 1500BC to 500BC) categorize gender in predominantly three forms 1.pums-prakriti as males, 2.Stri-prakritis as females and 3.Tritiya-prakrits as third gender or Apumsaka (not engaged in procreation). They were neither persecuted nor buffed rights. Vedhas emphasis that the child’s gender depends on Kama, Karma, Samkaras, Daiva of parents for which they shouldn’t be penalized. The literary works Silapathigaram, Seevagachinthamani, Thiruvasagam  Ramayanam, 1000 pillar mandapam, idol of arthanariswarar proves the position of transgender in Hinduism. Khawaja served the ottoman empires and they were appointed as guards in Mughal period. Christianity doesn’t have a clear stand but transgender were involved in evangelism and baptism. Even the Bible[24] and Quran[25] favors transgender and insists in treating them equally.

4.2 PRE AND POST INDEPENDENCE:

The real problem began only after the invasion of British. They are the first to discriminate transgender. They passed the Indian Penal Code and Criminal Tribal Act in 1860 and 1871 respectively.

4.2.1. CRIMINAL TRIBE ACT:

The Act defined the ethnic and social communities as criminals and was addicted to the systematic commission of non-bailable offences. The Act provided for the registration, surveillance and control of certain criminal tribes and eunuchs and had penalized eunuchs, who were registered, and appeared to be dressed or ornamented them as woman, in pubic, as well as those who danced or played music in public place. Such persons could be arrested without warrant and imprisoned to 2 years or fine or both and the Act prohibited them from acting as guardian to minor, making gifts or will, adoption. They have been described as habitual sodomite.[26]The act went through various amendments throughout the decades and been subsequently repealed in 1949.

 4.2.2. SECTION 377 OF IPC:

Whoever voluntarily has carnal intercourse against the order of nature with any man, woman, animal shall be punished with imprisonment for life or with imprisonment of either description for a term which may extend to ten years and shall also be liable for fine. Section 377 of IPC punishes certain person who has carnal intercourse against the order of nature inter alia human being because the nature object of carnal intercourse is that there should be possibility of procreation which in the case of coitus per os is impossible.

4.2.2.1. Struggles to strike down 377:

 In 2001 a Public Interest Litigation has been filled by a NGO-Naz foundation seeking the decriminalization of section 377 of IPC in Delhi High Court where the PIL has been dismissed and the subsequent review petition was also dismissed by the honorable court in 2004.In the appeal to Supreme Court in 2006 the court directed the Delhi High Court to reconsider the issue. Despite the central governments plea for time the final arguments began and the section was strike down in 2009[27] which the Supreme Court overturned the judgment in 2013.[28]After dragging over a period of five years Supreme Court declares right to privacy as fundamental right under constitution and observes that sexual orientation is an essential attribute of privacy and subsequently The supreme court’s constitutional bench unanimously strike down the section 377 of IPC as it violated the basic fundamental right of equality, privacy, personal liberty and dignity guaranteed by the constitution under articles 14,15,16,21 in 2018 being interpreted as above.[29]

4.3. THE TRANSGENDER PERSONS (PROTECTION OF RIGHTS) BILL,2018

The Bill was passed on the basis of Expert committees report relating to the issues that transgender face, 2014. No person or establishment shall discriminate against the transgender person in any perspective. This Bill provides them the right to self-perceived gender identity for which the application to be made to the district magistrate accompanied with the documents mentioned who forwards it to the committee comprising of chief medical officer, district social welfare officer, psychiatrist, representative of transgender community and a person nominated by the appropriate government and on approval by the government the district magistrate issues the certificate recorded in the official documents and serve as the proof. After the surgery the status can be changed and that doesn’t affect the rights under this Act. The appropriate government should ensure the inclusion. The Act provides the offenders with the imprisonment for a term not less than 6 months which may extend to 2 years with fine which compared to other Acts is too less. Though all these rights are guaranteed still this bill doesn’t have any clause for reservation.

4.3.1. National Legal Service Authority v. Union of India:[30]

The court emphasized on the need for legal recognition of third or transgender identity and concluded that they belong to distinct socio-religious and cultural group and must be considered as a third gender apart from male and female. The court held that transgender are entitled to affirmative action as guaranteed under constitution and state is bound to give them due representation.

4.4. POSITION OF TRANSGENDER IN CONTEMPORARY INDIA:

                                      Only after 58 years of independence first step for the recognition of transgender was taken by The Ministry of External Affairs in 2005 by including “others” in passport application along with male and female and subsequently the same procedure was followed by the Election commission in 2009.The Indira Gandhi National University has the pride of providing educational opportunity and introducing free schemes for transgender. The first census of transgender in 2011 estimated around 4.9 lakh population but the NHRC Report,2018 shows there were about 60-80 lakh transgender who avoided to reveal their identity. The various statics by this report is that only 2% live with their family,99% faces social rejection, less than 50% have access to education, 62% experience abuse and harassment,57% couldn’t afford for Sex reassignment surgery,17-41% are infected with HIV.[31] Transgender like all of us deserve a healthy and peaceful environment to live. The stigmatization, stereotyping, lack of acceptance affect their mental health seriously, that result in depression, anxiety and ultimately lead to suicide. As they lack employment opportunities they end up in prostitution which gift them with HIV. They were also physically abused by the police.

5. INTERNATIONAL CONVENTION:

The Convention on the Elimination of All forms of discrimination against 1979 women (CEDAW) provides the basis for realizing equality between women and men through women’s equal access to, and equal opportunities in political and public life ,including the right to vote and to stand for election as well as education, health and employment. States parties agree to take all appropriate measures, including legislation and temporary special measures, so that women can enjoy all their human rights and fundamental freedoms.

The Universal Declaration of Human Rights 1948 applies equally to women, transgender and men. Article 2 which states that everyone is entitled to all rights and freedoms without any discrimination on the basis of race, color, sex, language, religion, political or other opinion. The International covenant on civil and political rights, 1966 place an obligation to ensure equal right to both men and women for the enjoyment of all civil and political rights. (article3)The International covenant on economic ,social, and cultural rights ,1966 under article 7 states that “to recognize  just and favorable conditions of work which ensure remuneration, safety working condition, equality of opportunity and rest hours for both men and women equally.

6. CONCLUSION:

Eventhough gender equality is guaranteed under constitution, but in reality it has not been put into force very effectively. This responsibility has to be shared by the state, community organization, legislators who frame law and the judiciary which interprets law and other laws in order to give a fillip to the legal reform in the field of gender justice and to usher in the new dawn of freedom, dignity, and opportunity, for all citizens equally.

[3] Berubari Union and Exchange of Enclaves, Re, AIR 1960 SC 845,856.

[4] Maneka Gandhi v Union of India, AIR 1978 SC 597.

[5] Chitra Ghosh v Union of India, AIR 1970 SC 35.

[6] A Cracknell v State , AIR 1952 All 746.

[7] Gazula Dasaratha Rama Rao v State of A.P , AIR 1961 SC 564.

[8] Associate Banks Officers Association v State Bank of India, AIR 1998,SC 32.

[9] Vishaka v State of Rajasthan,AIR 1997 SC 3011.

[10] Francis Coralie Mullin v UT of Delhi. AIR 1981 SC 746.

[11] Bandhua Mukti Morcha v Union of India,AIR 1984 SC 802.

[12] Gaurav Jain v Union Of India, AIR 1977 SC 3021.

[13] State of Maharashta v Madhukar Narayan Mandikar,AIR 1991 SC 207, 211.

[14] AIRIndia v Nergesh Meerza, AIR 1981 SC 1829.

[15] Madhu Kishwar v State Of Bihar,AIR 1996 SC 1864.

[16] Dattatraya v State of Bombay, AIR 1952 SC 181.

[17] Indra Sawhney v Union of India,AIR 1992 SC 477.

[18] Raj Bahadur v Legal Remembrancer, AIR 1953 Cal 522.

[19] Olga Tellis v Bombay Municipal Corporation ,AIR 1986 SC 180.

[20] Randhir Singh v Union of India,AIR 1982 SC 879.

[21] Sarla Mundgal v Union of India,AIR 1995 SC 1531.

[22] Section 2(k) of The Transgender Persons( Protection Of Rights)Bill,2018.

[23] Section 2(i) of The Transgender Persons( Protection Of Rights)Bill,2018.

[24] Bible- Mathew 19:12.

[25]Quran- Verse 42:49-49:50.

[26] Queen-Empress v. Khairati

[27] Naz foundation v. Govt.of NCT of Delhi

[28] Suresh Kumar Koushal and another v. Naz foundation and others

[29] Navtej Singh Johar v. Union of India, W.P (Crl) No.76 of 2016.

[30] WP(Civil)N0 604 of 2013.

[31] AVERT,2014.